Earlier , these petitions have been dismissed by a Division Bench of this court, but on 02.08.2019 the Hon'ble Supreme Court had remanded these petitions before this court to be decided on merits. Order is reproduced as under:- "We have heard the learned counsel for the petitioners, more particularly , Syed Ali Zafar , learned ASC for the petitioner in Civil Petition No.1732/2019 and with his assistance, have examine d the available record and the impugned order dated 18.2.2019 of the Lahore High Court passed in W.P. No.581/2019. It is clear and obvious that the said impugned order is based on wron g assumption of facts, which is totally contrary to the record and perhaps the real matter in controversy in this case as well as in the connected cases may have escaped the adjudication.
2. In order to avoid prejudice to either side and to avoid miscarriage of justice, it would be appropriate that the impugned orders dated 28.11.2018 and 18.2.2019 are set aside and the matter is remanded back to the learned High Court, where the Writ Petitions Nos.229728 of 2018, 220081 of 2018 and 381 of 2019 shall be deemed to be pending, which shall be decided afresh on their own merits, after hearing both the parties. Since the petitioners are behind the bars, we are confident that the learned High Court shall decide the matter expeditiously preferably within a period of 30 days, after the receipt of this order .
3. In view of the above, these civil petitions are converted into appeals and the, same are disposed of accordingly ."
2. This order shall dispose of W.P. No.581-2019 titled "Hafiz Mian Muhammad Nauman v. Director General NAB and others" as well as W.P. No. 220081-2018 titled "Taseer Ahmad v. The State and others" , and W.P.
No.229728-2018 titled "Usman Qayyum v. Director General NAB and others" as all the petitioners have sought their post arrest bail by invoking the cons titutional jurisdiction of this court in ACR No.87- 2018 titled "The State v.
Hafiz Mian Muhammad Nauman and others". However , all the three petitioners were arrested on their respective grounds of arrest which are reproduced as under:- "Grounds of arrest against Hafiz Mian Muhammad Nauman,
1. The inquiry/investigation conducted so far reveals the prima facie involvement of Hafiz Nauman, being Chairman of Lahore Parking Company Limited in the commission of offences as defined under section 9(a) and Schedule of the National Accountability Ordinance, 1999.
2. Following facts form basis for immediate arrest of the accused:- a. Accused Hafiz Mian Nauman, being chairman of Messrs Lahore Parking Comp any Limited actively participated in the operations of company and visited the parking sites of Messrs Green Parking Dubai (only parking company in the Joint Venture). Thereafter , accuse d Hafiz Nauman, being chairman receiv ed a letter from Messrs Green Parking Dubai that agreement had been signed without their participation and fraudulent misrepresentation by Messrs AGCN/NTG Pakistan (Pvt.) Limited. Despite having knowledge of mis-representation by Messrs AGCN/NTG Pakistan (Pvt.) Limited, he being Chairman Board of Directors deliberately accorded the approval for illegal change of JV partner . b. Accused Hafiz Nauman, being chairman despite having knowledge of illegal signing of agreement without approval of BODs, deliberately did not take any action which reflects his connivance in commission of offence. c. Accused Hafiz Nauman, also actively participated in physical verification/inspection of illegal JV partner Messrs ZTE Corporation and proceeded to China as well. d. That the accused Hafiz Nauman, being Chairman of Lahore Parking Company , failed to exercise his authority and deliberately did not took any action for not handing over all the Parking sites i.e. 246 as per agreement and only hand over 33 lucrative parking sites to NTG/AGCN Pakistan. e. That the accused Hafiz Nauman, being chairman of Lahore Parking Company , failed to exercise his authority and malafidely did not ensure the capital Investment to be made by NTG/AGCN Pakistan and committed criminal negligence by compromising the projected revenues (Promised revenue) to be provided by NTG (co-accused) as per bidding documents. f. That the accused Hafiz Nauman, being chairman of Lahore Parking Company , failed to exercise his authority and did not take over the parking site handed over by City District Govt. Lahore (CDGL) and let these sites operated illegally in connivance with other accused persons. g. Accused Hafiz Nauman was given fair chance to explain the allegations levelled against him, however , he failed to submit any plausible reply . h. It is likely that accused may escape underground himself and will tamper the prosecution evidence through coercion, criminal inducement and criminal intimidation. i. Arrest of accused is necessary for the recovery of corruption money , collection of evidence and concluding the investigation in accordance with law ."
"Grounds of arrest against T aseer Ahmad.
1. The inquiry conducted so far reveals sufficient evidence to prove prima facie involvement of Taseer Ahmad, being Managing Director of Lahore Parking Company Lahore, in the commissio n of offences as defined under section 9(a) and Schedule of the National Accountability Ordinance, 1999.
2. Following facts form basis for immediate arrest of the accused:- a. Accused Taseer Ahmad, being Managi ng Director signed the agreement betwee n Lahore Parking Company and AGCN/NTG Pakistan for project "Parking operations and Management agreement for Lahore City" without the presence of foreign Joint V enture partners Messrs Green Parking Dubai in sheer violation of rules. b. At the time of contract accused Taseer Ahmad dishonestly did not make the capital investment and projected revenue (Promised Revenue) as part of the agreement (the responsibilities which the contractor was bound to perform as per bid document). c. Accused Taseer Ahmad, malafidely allowed the post bid changes of consequential nature in contradiction/violations of Punjab Procurement Rules and in violation RFP . d. Accused Taseer Ahmad, being Managing Director at the time of signing agreement changed the penalty clause with respect to RFP from Rs.20000 to Rs.5000 per day for breach of execution timeline or the project plan and that too was never imposed on contractor . e. The accused did not deliberately exercise his authority to ensure actualization of capital investment by AGCN/NTG (co-accused) and committed criminal negligence by compromising the projected revenues (Promised Revenue) to- be provided by NTG (co-accused) as per bidding documents. f. The accused did not deliberately and with mala fide intentions hand over all the parking sites as per stages/zones in light of schedule-1 1 of agreement rather hand over only 33 lucrative sites to the contractor (co-accused). g. Accused Taseer Ahmad, was given fair chance to explain the allegations levelled against him, however , he failed to submit any plausible reply . h. It is likely that accused may escape/ underground himself and will tamper the prosecution evidence through coercion, criminal inducement and criminal intimidation. i. Arrest of accused is necessary for the recovery of corruption money , collection of evidence and concluding the investigation in accordance with law ."
"Grounds of arrest against Usman Qayyum,
1. The inquiry conducted so far reveals sufficient evidence to prove prima facie involvement of Usman Qayyum, being Managing Director and Chief Finan cial Officer (CFO) of Lahore Parking Company Lahore, in the commission of offences as defined under section 9(a) and Schedule of the National Accountability Ordinance 1999.
2. Following facts form basis for immediate arrest of the accused.- a. Accused Usman Qayyum, being Mana ging Director/member of tender evaluation committee evaluated all the bids submitted by the bidders and recommended for physical verification of JV partners of AGCN (Green Park Dubai). He also visited Dubai and physically verified Green Park but at the time of contract deceitfully and dishonestly did not get the contract signed with foreign JV partner i.e. Green Parki ng Dubai. Thus extended undue favour to AGCN by the award of contract. b. That the accused Usman Qayyum as Chairperson of evaluation committee, malafidely approved the post bid changes of consequential nature in contra diction/violations of Punjab Public Procurement Rules and in violation of RFP. c. That the accused Usman Qayyum being member of bid evaluation committee at the time of signing agreement changed the penalty clause with respect to RFP from Rs.20000 to Rs. 5000 per day for breach of execution timeline or the project plan and that too was never imposed on contractor . d. At the time of contract accused Usman Qayyum dishonestly did not make the capital investment and projected revenue (Promised revenue) as part of the agreement (the responsibilities which the contractor was bound to perform as per bid document. e. That the accused Usman Qayyum as member of project committee did not deliberately and with mala fide intentions hand over all the parking sites as per stages/zones in light of schedule-II of agreement rather hand over only 33 lucrative sites to the contractor (co-accused). f. Accused deliberately did not exercise his authority to ensure actualization of capital investment by NTG/AGCN Pakistan (co-accused) and criminally compromised the projected revenue as per financial bid of AGCN Pakistan. g. Accused Usman Qayyum was given fair chance to explain the allegations levelled against him, however , he failed to submit any plausible reply . h. It is likely that accused may escape/ underground himself and will tamper the prosecution evidence through coercion, criminal inducement and criminal intimidation. i. Arrest of accused is necessary for the recovery of corruption money , collection of evidence and concluding the investigation in accordance with law ."
3. Brief facts as contained in ACR No.87- 2018 titled "The State v. Hafiz Mian Muhammad Nauman and others" are that the petitioners Chairman, Chief Executive Officer and Managing Director/Chief Financial Officer of Lahore Parking Company Limited (hereinafter to be called LPCL) whereas one Faizan Wali and Saad Rafiq were the General Manager Operations and Manager Accounts/Finance, respectively , and Muhammad Faisal Ahad Rao was the Chief Executive Officer of Messrs National Telecommunication Group Pakistan (Pvt.) Limited previously Messrs AGCN Pakistan (Pvt.) Limited. The said LPCL was incorporated on 10.08.201 2 and started its business on 29.01.2013, with a view to bring Development and Modernization in the field of parking and to benefit the people living within territorial limits of Lahore City by providing sustainable, efficient and affordable parking service to them and also to generate income for the company . However , it decided to outsource the parking arrangement, therefore, the tender was publically floate d and Messrs UCS Park Turkey and Messrs AGCN/NTG Pakistan (Pvt.)
Limited were found as technically qualified firms. However , Messrs AGCN/NTG Pakistan (Pvt.) Limited allegedly deceitfully portrayed Messrs Green Parking Dubai and Messrs Inbox Technologies as its JV partners at the time of bidding. Messrs AGCN/NTG Pakistan (Pvt.) Limited qualified the technical bid on the basis of expertise and experience of Messrs Green Parking Company , Dubai in the field of parking. Latter denied its participation as member of JV and duly informed the accused/petitioner that the agreement was signed without their consent and knowledge. Messrs AGCN/NTG Pakistan (Pvt.) Limited also did not conduct any business transaction with Messrs Inbox Technologies Pakistan, therefore, the accused persons acted in league with management of Messrs AGCN/NTG Pakistan (Pvt.) Limited and gave undue favour to them by showing, and only showed the said two firms for the purpose of securing the project as Messrs AGCN/NTG Pakistan (Pvt.) Limited had no experience in the field of parking management yet came out as a lead bidder for a project of parking. According to advertised tender in newspaper to hand over and modernize 246 parking sites of City Lahore, the contractors were responsible to make capital investment and modernize the parking sites and, thereafter , to collect revenue from the parking sites and, therefore, was required to share the revenue collected with the government @ 45.4%. But the investigation revealed that all the petition ers in active aid, abetment and connivance with each other , dishonestly and with mala fide intentions misused their authority in order to gain/render illegal benefit for themselves and their co-accused persons and willfully failed to exercise their authority in order to prevent the grant of contract to their co-accused while indulging in offences of corruption and corrupt practices. The evidence so far collected establishes that the accused/petitioners have fraudulently and dishonestly caused loss to the national exchequer to the tune of Rs.8,00,00,000/- through corrupt and dishonest means and have comm itted the offences of corruption and corrupt practices as defined under section 9(a)(iii)(vi) and (xii) punishable under section 10 of the National Accountability Ordinance, 1999 and schedule thereto. Pertinently , during the course of investigation, the accused Muhammad Faisal Ahad Rao, Faizan Wali and Saad Rafiq admitted their guilt and entered into plea bargain by offering to return the illegal pecuniary gains amounting to Rs.6,25,00,000/-, Rs.87,50,000/- and Rs.87,50,000/- respectively which were acquired by them as a consequence of commission of alleged offences and was approved by this Court on 21.05.2018.
4. Hafiz Mian Muhammad Nauman/petitioner Chairman of Messrs Lahore Parking Company Limited was alleged to have actively participated in the operations of the company and visited the parking sites of Messrs Green Parking Dubai (the only parking company in the JV) although who received a letter from Messrs Green Parking Dubai that agreement had been signed without their participation and through fraudulent misrepresentation by Messrs AGCN/NTG Pakistan (Pvt.) Limited for a Joint Venture (JV) with Green Parking Company Dubai yet he executed the agreement with the approval of Board of LPCL and had failed to exercise his authority with mala fide and he did not ensure the capital investment by NTG/AGCN Pakistan on the parking sites by collecting the revenue in accordance with the bidding document/ agreement and had also handed over only 33 lucrative out of 246 parking sites and, therefore, failed to prevent losses caused to the national exchequer of LPCL. He is also indulged to have interfered in the operation of LPCL and deliberately did not hand over all 246 parking sites. According to the investigation report, the petitioner was arrested on 28.11.2018 after when his pre-arrest bail was dismissed by this court.
5. Taseer Ahmad accused/petitioner/Managing Director of LPCL was alleged to have signed the agreement for project titled "Parking Operations and Management Agreement for Lahore City" in the absence of the foreign Joint Venture partners Messrs Green Parking Dubai and that it did not make the capital investment in the project revenue as part of the agreement and also allowed the post bid changes in the contract in violation of PPRA Rules and the RFP and also reduced the penalty from Rs.20000 to Rs.5000. He was arrested on 26.04.2018.
6. Usman Qayyum accused/petitioner was alleged to have remained as Chief Financial Officer of Messrs LPCL from 24.12.2012 to 22.06.2017 and also served as acting Managing Director and Chief Executive Officer on two separate occasions. He actively participated in the execution of the agreement dated 06.02.2014 by Taseer Ahmad co-petitioner with Messrs AGCN/NTG Pakistan (Pvt.) Limited in absence of foreig n Joint Venture namely Messrs Green Parking Dubai and, therefore, the CEO of Messrs Green Parking forwarded a letter to the Chairman of Messrs LPCL that there was no Joint Venture between Messrs Green Parking and Messrs AGCN Pakistan (Pvt)
Limited and that the said project was scored by fraudulent misrepresentation. A legal opinion on the matter of change of Joint Venture partner was allegedly obtained by the Legal Advisor to change the Messrs AGCN Pakistan and new JV partner Messrs ZTE China was introduced and approved on the recommendation of an evaluation committee in which the petitioner was a member . He also visited China with the co-petitioner Hafiz Mian Muhammad Nauman. The penalty clause of the agreement was changed from Rs.20000 to Rs.5000 per day for breach of execution timeline and secondly , a provision of notice was added in the termination clause before entering into the dispute resolution and thirdly , clause 26.2 of the agreement, the contract was amended permitting the change in the organizational form of the company but the new JV partner was added in violation of the contract.
It was also alleged that the Messrs LPCL never imposed any penalty clause for breach of execution timelines of Messrs AGCN/NTG Pakistan who was alleged to have visited Dubai but did not sign the agreement with the JV partner . By changing the terms he allegedly caused loss to the national exchequer .
7. Learned counsel for the petitioners submit that there is no allegation of corruption against the petitioners as no substantial pecuniary loss or corresponding gain could be attributed by the prosecution against the petitioners and that the only allegation of misuse of autho rity has been levelled against them without any substantiation. Adds that the nature of job of the petitioners permi tted the acts which they have done in good faith without the element of crime i.e. mens rea and actus rea which are clearly missing. Adds that mere orientation visits to Dubai and China and signing of the agreement as the responsible officials of the company duly approved by the Board would not constitute the offence under N.A.O., 1999. Adds that the Board meetings of the Board of Directors have been rectifying the decision taken by the petitioners and as such they cannot be solely held individually responsible for the decision collectively taken by the Board. Adds that the City District Government was earning money from the parking sites and they had not imparted with their possession so was not given to the company for its further handing over to the contractor . Adds that the speculative losses were calculated on hypothetical basis and no exact liability is determined against the petitioners, particularly after when the co-accused Muhammad Faisal Ahad Rao, Faizan W ali and Saad Rafiq have cleared their liability under the plea bargain.
8. Arguments heard. File perused.
9. The Lahore Parking Company Limited (LPCL) was created under section 32 of the Companies Ordinance, 1984.
It has its Article and Memorandum of Asso ciation and under clause 46 thereof, eight persons were appointed as the company's bearers.
1. Mr. Noor ul Amin DCO/Administrator , Lahore.
2. Muhammad Yousaf Secretary Transport.
3. Moazzam Iqbal EDO (F&P) CDGL,
4. Muhammad Nauman/petitionerMPA.
5. Usman Anwar/petitioner Chief Traffic Of ficer, Lahore.
6. Ramzan Siddique MPA.
7. Khawaja Haider Latif CEO L TC.
8. Mehmood Masood Tamana EDO (MS)CDGL Under Clause 47, the Chairman was to be appointed by the Board from time-to-time, amongst the Directors of the company and continued at the pleasure of the Board. The powers and duties of the Directors were to manage the business of the company and they could exercise such powers prescribed under the Ordinance or any statutory modification made or through the decisio n made in general meeting. Under clauses 64 to 68, it was provided that the Directors shall appoint any person to be the Chief Executive of the Company and under sections 198 and 199 of the Ordinance who was to hold office for a period not exceeding three years. The whole business of the Company was to be carried out by the Chief Executive who enjoyed all powers, authorities and discretion given under the Ordinance. He was empowere d to exercise such powers subject to the control of Board of Directors which, inter alia, included to take on lease , purchase, erect or otherwise acquire for the company any land, building and property etc, to sell, let, exchange or otherwise dispose of absolutely or conditionally , all or any part of the property etc, to enter into, carry , rescind, or vary all financial arrangements or agreement with any banks, persons, corporations in connection with Company's business and affairs etc, to determine, who was to sign on Company's behalf the bills, cheques, notes, receipts , acceptance endorsements, release of contract and documents and to enter into such negotiation and contracts and rescind or vary all such agreements and to make advances for the business of the Company to such person upon such security or without security to control and manage expenditures etc. Clause "f" would be relevant for the purpose of decision which is reproduced as under:- f) To enter into, carry , rescind, or vary all financial agreements or agreement with any banks, persons or corporations for, or in connection with the Company's business and affair and in connection with such arrangement to deposit, pledge, hypothecate any property or the Company or the document representing or relating to the same;
10. The appointment letter of the Chief Financial Officer, Usman Qayyum/petitioner , shows that he was responsible to develop finance organizational strategies, implement the proper personnel process and to act as Chief Authority on financial operations of the Company and was responsible for ensuring that appropriate advices were given to the Board on all financial matters. He was also responsible for overseeing the financial operations of the entire Company and to watch the financial interest of the business and to maintain the financial control of the Company .
In other words, he was required to observe organizational objectives with reference to financial developments.
11. In order to outsource the parking facility in the city of Lahore, the LPCL advertised 246 sites to the general public. According to the NAB, AGCN with Green Parking Company came forward with an attractive offer who was also found technically qualified and theref ore, their bid was approved. On 06.02.2014, an agreement was executed between Lahore Parking Company with AGCN, Pakistan (Pvt.) Ltd. in which Taseer Ahmed, being Chief Executive Officer signed on behalf of LPCL and Faisal Arshad Rao, signed on behalf of AGCN, whereas Usman Qayyum/petitioner and one Noman Ahmed Said, were the two witnesses. It appears that clause 26.2 was provided under which the contractor was permitted to change the organizational form or status or contractual relationship and that with prior approval of LPCL, the contractor could change its members or change the joint venture partnership, but the principal company/lead bidder could not be changed. In case of default or non-performance of the joint venture partner or in case of dispute between the contractor or any of Company's joint venture partner under this agreement or under any other agreement between such joint partners, it was provided that if the joint venture partner had failed to perform their obligation, such responsibility could be assigned by the Directors to any other party of comparable expertise or experience as per request for proposal with prior approval of LPCL.
Importantly , under clause 2.2 of the agreement, LPCL was responsible to provide parking facilities, parking zones and parking areas to the Company which fall with the territory , except parking areas, zones or sites owned and controlled by any government agency other than the MCL. Clause 2.2 is reproduced as under:- "2.2 For the purpose of this Agreement, LPCL shall be responsible for providing the Parking Facilities, Parking Zones and Parking Areas to the Contractor which fall within the Territory , except parking areas, zones, or sites owned, and controlled by any Government Agency other than the MCL, or which may subsequently be added in the purview of LPCL."
12. On 13.02.2014 AGCN, Pakistan wrote a letter to change the organizational structure by invoking clause 26.2 and to introduce another JV partner . On 26.02.2014, Messrs Future Link/Green Parking Company , Dubai had written a letter to Hafiz Mian Muhammad Nauman, petitioner/Chairman stating that AGCN, Pakistan (Pvt.) Ltd. and Future Link/Green Parking Company , agreed to collaborate with each other to pursue award and operation of parking facilities for LPCL on 06.02.2013 for which a memorandum of understa nding (MOU) was reached on 04.04.2013 for the joint submission of bid through which AGCN was the lead partner whereas Green Parking Company was to provide, inter alia, the equipment, consultancy and technical support for the Lahore Project. A representative of LPCL visited Dubai on their asking between 26.07.2013 to 30.07.2013 as part of the tender process who made various surveys on prominent places like Emaar Square, Down Town Burj Khalifa, Media City, Dubai and Al Majaz Park, Sharjah. It was mentioned in clause 10 of the said letter that agreement dated 06.02.2014 was signed by Faisal Rao (AGCN) without consent and knowledge of the Green Parking, therefore, in clause 15 it was conveyed that Company unequivocally denied that they were part of the joint venture in respect of Lahore Project as there was no final negotiation between AGCN and Green Parking in parking facilities in said district Lahore. It was, therefore, unanim ously approved to replace Future Link Green Parking, Dubai with ZTE Corporation, China as JV Partner . On 17.10.2014, petitioner/Hafiz Mian Muhamma d Nauman, was again proposed and elected as Chairman of the Company . According to the NAB, this permission to substitute JV Partner was granted ex-post facto in the above said 6th Board meeting. The AGCN/NTG Pakistan (Pvt.) Ltd. revised dates for handing over and to operationalize the project of these sites but it could not be completed as the parking sites were not handed over to the contractor and that only 33 sites were so handed over. In the 9th meeting of the Board it was decided to cap the project and in 13th meeting of the Board held on 11.12.2017, it was briefed to the Board that there was serious non-compliance of the terms and conditions of the agreement by the contractor Messrs NTG Pakistan Pvt. Limited (formerly AGCN Pakistan Pvt. Limited) and, thereafter , legal advice was sought to initiate the termination procedure, which was also granted.
13. The defence of Hafiz Mian Muhammad Nauman/petitioner is that he was legally elected, MPA from constituency PP-148 Lahore in 2008-13 and that Lahore Parking Company was subsidiary of Lahore City District Company which owned all shares of the said company . It nominated him as a Director of LPCL in its meeting. On 11.08.2012 he was elected as Chairman of the Board and on 17.10.2014 in the 7th meeting he was re-elected as Chairman. Similarly , the defence of Taseer Ahmed/ petitioner is that he acted with approval of the Board as he signed the agreement on 06.02.2014 and complied with the directions made in the 5th meeting of Board of Directors held on 20.06.2013. He took the stand that all the parking sites were not handed over to the contractor due to their non-availability . Usman Qayyum/petitioner has also taken the similar stand.
14. W e have straightway noted some very pertinent and relevant facts which are, inter alia, narrated as follows:-
(a) The exact calculated loss to the national exchequer allegedly caused by the petitioner could not be substantiated before us.
(b) The loss so far calculated against the co-accused person namely Muhammad Faisal Ahad Rao, Chief Executive Officer of NTGP (Pvt.) have been recovered through plea bargain duly approved by the Accountability Court.
(c) The competency of the petitioners being the of fice bearers of LPCL has not been questioned by the NAB.
(d) Awarding of contract after following the procedure and affording fair competition to the competitors has also been admitted by the NAB.
(e) The offer made by JV partner AGCN and Green Parking Company was admitted and the award of contract by company on the basis of record was not questioned.
(f) In the letter sent on behalf of Green Parking, memorandum of understanding (MOU) between them to make offer for the Lahore Project was not denied but it was stated that at the time of writing the letter that they were no more JV partners.
(g) By invoking clause 26.2 the agreement was revised/modified so as to introduce ZTE China to substitute as new JV partner and before doing that, approval of the Board was accorded.
(h) Under clause 2.2 of the agreement the vacant sites were to be handed over by the Company to the contractor after getting its possession from the City District Government, therefore, the responsibility of the contractor would start after such change over on ground.
(i) The record does not show that City District Government had handed over the possession of said sites to LPCL for their further handing over to the contractor .
(j) Above all, we have not been able to keep our eyes off the fact that when the Green Parking Company had denied their status as JV partner , at least the statement of any representative was required to be recorded by the NAB to verify the veracity of said letter .
(k) None from it was cited as a prosecution witness in the reference against the petitioners.
(I) The agreement was signed by Usman Qayyum, as Chief Executive Officer whereas Hafiz Mian Muhammad Nauman, was not a witness there. The person who signed the agreement on behalf of AGCN has already made plea bargain.
15. To our humble understanding, the case of the prosecution is that agreement with Green Parking Company Future Link as JV partner should not have been signed in the absence of Green Parking Company and that the petitioners did not exercise due diligence to verify the capacity of AGCN as lead company for executing the contract. Whether this very act even if proved, would constitute any offence under NAB Ordinance under section 9(a)(iii)(vi)(xii) of N.A.O., 1999 or of criminal breach of trust require further evidence. The ground taken by the NAB that in view of the plea bargain the commission of offence is established against the petitioners, cannot be appreciated at this stage since the prosecution has to independently prove the case against the petitioners and not by taking the advantages of developmen t made subsequent to the investigation. The prosecution has not been able to dig out any transfer of funds or receiving of kickback by the petitioners for executing an agreement with AGCN Pakistan (Pvt.) Ltd. and Green Parking Company to extend them any favour with corresponding loss to the national exchequer . In this view of the matter , the constitution of offences under section 9(a)(iii)(vi)(xii) of N.A.O., 1999 needs further inquiry .
16. Section 9(b) of the National Accountability Ordinance, 1999 provides as follows: "All offences under this Ordinance shalt be non-bailable and, notwithstanding anything contained in sections 426, 491, 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court shall have Jurisdiction to grant bail to any person accused of any offence under this Ordinance."
Since the first hand remedy before trial court is specifically ousted, the natural question arises that whether this right is not available to an accused involved in NAB offence, when such right is available to persons accused of other offences. To find out such answer of this question, it is expedient to understand evolution of jurisprudential aspect of bail.
17. The concept of bail can be traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. Circuit courts during medieval times in Britain held quarter sessions in different parts of country . This lead to evolve a series of laws for release of the under trial prisoners on securing a surety . The provision for bail can also be traced back to Magna Carta itself as follows: "No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force agains t him, or send others to do so, except by the lawful Judgment of his equals or by the law of the land."
Thereafter , another great milestone in the history of England called the Petition of Right of 1628 during the reign of Stuarts, which though reluctantly accepted and acknowledged that no free man should be imprisoned or detained, except by authority of law. The concept was further evolved in shape of Habeas Corpus Act of 1679". This Act provided that many of the King's subjects have been long detained in prison in cases where, by law, they should have been set free on bail. The next great landmark in English history is the Bill of Rights of 1689 which provides that "excessive bail ought not to be required...." Thereafter , the US Constitution borrowed the language of the Bill of Rights when the principle of habeas corpus found its way into Article 1 Section 9 of the US Constitution, followed by the Eighth Amendment to the Constitution . The right to liberty is also guaranteed in the International Covenant on Civil and Political Rights (ICCPR), to which Pakistan is a party .
18. By now, the basic rule may perhaps be tersely put as bail and not jail, except where there are certain circumstances ..." and every man is deemed to be innocent until duly tried and duly found guilty . Thus the issue of bail is one of liberty , justice, public safet y and burden of the public treasury , all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As a presumably innocent person, an accused is, therefore, entitled to freedom. Punishment, by plain logic, has necessarily to follow a determination of guilt, accompanying conviction, and can never be anterior thereto. Bail is not to be withheld as a punishment.
Incarceration during trial, therefore, can never be punitive in nature and is never intended to operate as a punishment. In civilized societies, deprivation of liberty must be considered a punishment, unless it is essential to ensure that an accused person will not stand his trial when called upon. Most impo rtant principle amongst all is that grant of bail is the rule and refusal is the exception. Therefore, the grant of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case.
Obviously , it can be withheld only in the exceptional circumstances.
19. The Constitution of Islamic Republic of Pakistan ensures the elimination of all forms of exploitations under Article 3. It also guarantees the protection of law and to be treated in accordance with law as unalienable right of every citizen with particular emphasis that no action detrimental to the life, liberty or body of the person shall be taken except in accordance with the law under Article 4. Further , "no person shall be deprived of life or liberty saves in accordance with law" as written in Article 9. The Constitution also guarantees that no person who is arrested shall be detained in custody without being informed of the grounds of his arrest and shall not be denied the right to consult and be defended by a legal practitioner of his choice as enshrined under Article 10. Right to fair trial and due process is also ensured under umbrella of Article 10-A of Constitution. Every citizen is also guaranteed freedom of movement to remain in, enter and move freely as defined in Article. With such Constitutional guarantees, it would be quite contrary to the concept of personal liberty that a person should be punished without conviction or he should be deprived of his liberty on belief that he will tamper with the witnesses if left at liberty .
Thus bail is the rule and committal to jail an exception warranted only in most extra ordinary circumstances.
20. The National Accountability Ordinance expressly ousts the jurisdiction of courts to grant an accused person bail, which means that accused people have to approach the High Courts for bail in their constitutional jurisdiction which may cause over burdening the courts but denial of their rights by the High Court, in our humble opinion, would perhaps make us guilty of breach of our oath as Judges of High Court.
A beautiful quote of Justice Cornelius is reproduced to emphasis on the sacredness of the High Courts exercising constitutional jurisdiction:- "The writ jurisdiction of this Court has always been there and shall continue to come at the rescue of those citizens of this country who have no alternate and efficacious remedy available to them. It is one of the flowers of paradise and the whole length and breadth of Pakistan is not wide enough to contain there perfume. God fulfills Himself in many ways and that we (Judges) are the humble instruments of His fulfillment. The writ jurisdiction is the modern manifestation of God's pleasure and that God's pleasure dwells in the High Court".
Borrowed from Chief Justice Cornelius of Pakistan by Ralph Branbiti, published by Oxford in 1999 at Page 42-43.
21. Coming back to the question of grant of bail in offences in National Accountability Ordinance, 1999, it is by now well settled that a statutory ouster of jurisdiction of all Courts could not affect the jurisdiction of a High Court to grant bail under Article 199 of the Constitution. The primary feature of Article 199 of Constitution is to provide a forum to an aggrieved person who has no other adequate remedy . The Secondary feature of Article 199 of Constitution is the protection of fundamen tal rights. When a citizen complaints violation of fundamental right, High Court should exercise its power under Article 199 to investigate the matter and pass such order as may be found just, legal and equitable. The scheme of the constitution makes it obligatory on the part of superior Courts to interpret Constitution, law and enforce fundamental rights. There is no cavil with the proposition that ultimate arbiter is the Court which is the custodian of the Constitution. The rights against arbitrary detention as provided under constitution contemplates that every imprisonment without trial and conviction is prima facie unlawful. It is also basic principle that cornerstone of the administration of justice is that all people are entitled to due process of law and are assumed to be innocent unless proved guilty . Every citizen must be treated with equality and his dignity , liberty , life and honour must be guaranteed as envisaged in the Constitution. The High Court has not only a right but a fundamental constitutional duty that these fundamental rights are not fringed. With the expanding horizon of Articles dealing with Fundamental Rights, now every executive action of the Government or other public bodies, if found arbitrary , unreasonable or contrary to law, is amenable to the writ jurisdiction of the Superior Courts to be validly scrutinized on the touchstone of the Constitutional mandates.
Here, it would be appropriate to refer to Subhash Kumar Sharma v. State on 20 June, 2018 reported as AIR 1991 SC 420 in which it is observed that:- "(iii) ....Curtailment of personal liberty during trial, has, therefore, to be limited to those cases in which it is absolutely essential, and in which, in the absence of such curtailment, the process of trial is likely to be hampered by the accused, whether by vanishing or by unduly influencing the trial process, by intimidating the witnesses, or otherwise. If no such apprehension can legitimately be expressed, there can be no reasonable ground to keep the accused incarcerated, as incarceration would then assume a punitive avatar .
(vi) ............It would be entirely impermissible for the court, at the stage of deciding the bail application of the accused, to subject him to a premature trial far less to return any finding, even tentative, regarding the justifiability of the charge against him.
(vii) .......The Court cannot, however , while adjudicating a bail application, adopt an entirely accused-centric approach, unmindful of the prevailing public and societal interests hanging in the balance. The right of the accused to liberty , prior to his being found guilty of the charge against him has to be weighed against the public interest involved, in ensuring that the trial proceeds fairly and unhindered."
22. Undoubtedly , the extraordinary jurisdiction under Article 199 of the Constitution is to be exercised with conceptive and caution, just to advance the cause of justice and not to frustrate or defy the intent of law. Such exercise must be made to prevent miscarriage of justice and abuse F of N.A.O., 1999. It cannot be withheld as a punishment. This Court also cannot elaborate the sifting of evidence but make a tentative assessment of the material laid before this Court. At this stage, an inquiry by this Court is permissible to seek an answer to the question of the involvement of the petitioner without going into deeper appreciation of evidence. This right of the petitioner to approach this Court is not only a constitutional mandate but is independent of any source of jurisdiction such as section 497, Cr.P.C. or 9(a) of N.A.O., 1999. This ample powers of this Court are meant and reserved for the enforcement of the fundamental rights of the citizen of this country , particularly those who have been retained by the NAB authorities in offences, which according to the wisdom of this Court, calls for further inquiry . Reliance is placed upon Tallat Ishaq v. National Accountability Bureau through Chairman and others (PLD 2019 SC 112), National Accountability Bureau through Chairman v. Murad Arshad and others (PLD 2019 SC 250), Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Divisio n Islamabad and others (PLD 2001 SC 607), Secretary . Revenue Division and others v. Muhammad Saleem (2008 SCMR 948), Government of Sindh through The Chief Secretary , Karachi and 4 others v. Raeesa Farooq and 5 others (1994 SCMR 1283 ), Regarding Corruption in Hall Arrange ments in 2010 (2011 PLC (C.S.) 1489 ), Federation of Pakistan through Secretary , Ministry of Interior , Islamabad v. Mrs. Amatul Jalil Khawaja and others (PLD 2003 SC 442), Suo Motu Action Regarding Allegation of Business Deal Between Malik Riaz Hussain and Dr. Arsalan Iftikhar Attempting to Influence the Judicial Process (PLD 2012 SC 664), Watan Party and another v.
Federation of Pakistan and others (PLD 2011 SC 997), Mustafa Ansari v. Deputy Commissioner , Chittagong Hill Tracts, Rangamati and others (PLD 1965 Dacca 576), Corruption In Hajj Arrangements in 2010 (PLD 2011 SC 963), Subhash Kumar v. State of Bihar and others (AIR 1991 SC 420), Olas Khan and others v.
Chairman NAB through Chairman and others (PLD 2018 SC 40), Nadeem Majeed v. The State and others (2007 SCMR 1958 ), Chairman National Accountability Bureau, Islamabad and another's caser (2004 SCMR 91), Mrs. Riaz Qayyum v. The State and another (2004 SCMR 1889 ), Haji Ghulam Ali v. The State through A.G. N.W.F.P. Peshawar and another (2003 SCMR 597), Mst. Fatima Ismail v. The State (2003 SCMR 733), Muhammad Saeed Mehdi v. The State and 2 others (2002 SCMR 282), Dr. Mujahjid Kamran v. Chairman National Accountability Bureau (NAB ) and others (2019 PCr.LJ 34), Engineer Raja Qamar Ul Islam v.
National Accountability Bureau through Chairman and others (2019 PCr.LJ 582), Syed Ather Hussain and others v. Chairman National Accountability Bureau and another (2019 YLR 788), Ghani-ur-Rehman v.
National Accountability Bureau and others (PLD 2011 SC 1144) and The State and others v. M. Idrees Ghauri and others (2008 SCMR 1 118).
(Here we do acknowledge the valuable input given by the Research Cell of the Lahore High Court).
23. For the above stated reasons we have no hesitation to hold that although such powers are exercised exceptionally and not a routine as substituted of section 497, Cr.P.C. but it is now open and very well exposed to the people of this country that whenever the NAB has indulged in to denial of the fundamental right of freedom, against Article 15, there is only one silver lining in the sky of relief which can be clearly seen through the prism of a Judge of this Court exercising constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The denial of such right would make us less confident in discharge of our constitutional duties under the Constitutional mandate and oath we have taken under the Constitution to preserve, protect and defend different clauses including Article 199 of Constitution.
24. In this view of the matter , these petitions are allowed and the petitioners, Hafiz Mian Muhammad Nauman, Usman Qayyum and Taseer Ahmed, are admitted to post arrest bail subject to their furnishing bail bonds in the sum of Five Million Rupees (Rs.50,00,000/-) each with two sureties each in the like amount to the satisfaction of the learned trial court.